Citation Nr: 21011062 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-58 945 DATE: February 26, 2021 REMANDED The issue of entitlement to compensation under 38 U.S.C. § 1151 for visual impairment, to include complete blindness, left eye, due to cataracts surgery, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1955 to January 1958. In June 2018, the Veteran and V. W. testified under oath before the undersigned Veterans Law Judge at a central office hearing in Washington, DC. A transcript of the hearing is of record. In December 2019, this matter was remanded by the Board for additional development. For the reasons outlined below, the Board finds that remand is again needed. Entitlement to compensation under 38 U.S.C. § 1151 for visual impairment, to include complete blindness, left eye, due to cataracts surgery. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. At the outset, the Board acknowledges the Veteran’s representative’s objections to the November 2020 VA opinion, and the request for a further remand of the issue on appeal. See Brief, January 2021. The Board has reviewed the contentions, and without making a final determination on the merits of the arguments advanced, will remand for further development. First, the Board finds that there may be outstanding treatment records to be obtained and associated with the claim file. In July 2020, VA received private treatment records from a February 2020 treatment. The treatment pertains to blurred vision involving the right and left eyes. The treatment records indicate that the Veteran was counseled regarding optic nerve atrophy. Specifically, that treatment for this condition “will depend on the cause of the atrophy” and that “[i]t is important to determine the cause of optic atrophy to try to limit further damage or more serious problems.” The notes state further that “[a]n evaluation of the cause will need to be undertaken.” Accordingly, upon remand, the Board asks that any outstanding treatment records be obtained that pertain to this advised future evaluation. Next, the Board asks that a new VA opinion be obtained. The Board acknowledges the series of VA opinions obtained in November 2020, but finds that a new opinion is needed for the following reasons. First, the Board asks for the following clarification. A July 2019 VA opinion indicates that retinal vein occlusions can be a risk of cataract surgery. However, in one of the November 2020 VA opinions it states that “rvo is not a risk factor of cataract surgery from medical literature review.” (Emphasis added). However, the November 2020 VA opinion does not address the July 2019 VA opinion, nor does it identify the medical literature reviewed. Accordingly, upon remand, the Board asks that the seemingly contradictory opinions be addressed. In addition, clarification is needed regarding another November 2020 opinion, which appears to contain internal contradictory statements. For example, it states that optic atrophy of the left eye due to CRVO was documented in a June 2018 DBQ, and that the DBQ “notes that it was present since 2013/14.” However, the opinion also states: “The optic atrophy and vision loss qualifies for an additional disability.” The Board seeks clarification as to how the Veteran’s optic atrophy qualifies as an additional disability, if was present since potentially 2013, i.e. prior to the Veteran’s February 2014 surgery. In the December 2019 remand, the Board specifically requested clarification on this point. Accordingly, the Board will once again remand for clarification as to whether the Veteran’s claimed disability can be considered an “additional” disability, as contemplated under 38 U.S.C. § 1151. Further, the Board asks for clarification regarding the Veteran’s current diagnosis. One of the November 2020 VA opinions states that “From review or [sic] records claimant had complicated cataract surgery os followed my [sic] multiple surgeries to include subsequent ACOIL, placement os, irits [sic], and glaucoma.” Similarly, the February 2020 private treatment record notes glaucoma in the left eye. The Board asks that, upon remand, an examiner clarify the Veteran’s current diagnosis. The Board acknowledges the November 2020 opinion that follows more explicitly the outline of directives contained in the December 2019 remand. However, many of the answers provided in this opinion are conclusory and do not provide sufficient rationale to justify the conclusions reached. For example, in the December 2019 remand, the Board asked for an opinion that addressed: [W]hether it is as likely as not that the Veteran has an additional disability that . . . was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title [38 U.S.C. § 1701(3)(A)] . . . In response, the opinion states: “Review of records shows that the VA tried to do everything within the stadard [sic] of care to assist this claimant in preserving his vision by providing ongoing eye treatment and care”. The Board finds this statement to be conclusory, as well as unclear. In particular, the Board seeks clarification of the use of the word “tried.” It is unclear to the Board from this statement whether the VA was successful in its attempts to do everything within the standard of care. Finally, the Board acknowledges that the Veteran’s representative has submitted a reference to a factsheet from the American Society of Retina Specialists (ASRS) that “Although diabetes and high blood pressure are risk factors for CRVO, its specific cause is still unknown.” See Brief, January 2021. The Board asks that the VA examiner address this in the new opinion. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. In particular, the Board notes that the February 2020 private treatment record, received in July 2020, references a potential future evaluation. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination with a new ophthalmologist, and obtain a medical opinion to clarify the Veteran’s diagnosis and to address the etiology of the Veteran’s claimed visual impairment. The ophthalmologist is asked to address the following: (a) The Veteran’s current diagnosis. In diagnosing the Veteran, the examiner is asked to address the following: (1) a November 2020 VA opinion that notes “optic atrophy of the left eye due to crvo”; (2) a November 2020 VA opinion that states that “From review or [sic] records claimant had complicated cataract surgery os followed my [sic] multiple surgeries to include subsequent ACOIL, placement os, irits [sic], and glaucoma”; and (3) a February 2020 private treatment record that notes, inter alia, glaucoma in the left eye. (b) For the relevant disability(ies) diagnosed, the examiner is then asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability is an additional disability* that: (1) was not the result of the Veteran’s willful misconduct; and (2) was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title [38 U.S.C. § 1701(3)(A)]; and (3) the proximate cause of the disability was either: (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (ii) an event not reasonably foreseeable.** *The examiner should note that: “To determine whether a veteran has an additional disability, VA compares the veteran‘s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination... upon which the claim is based to the veteran‘s condition after such care, treatment, examination, services, or program has stopped.” 38 C.F.R. § 3.361(b). **The examiner should also note that: “The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 . . .” 38 C.F.R. § 3.361(d)(2) (Emphasis added). In drafting the opinion, the ophthalmologist should also address the following: (1) Whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider and whether the Veteran received informed consent pursuant to 38 C.F.R. § 17.32 for all applicable VA care; (2) The Veteran’s claim that his vision was better prior to his VA treatment; (3) All pertinent treatment by the VA, to include three procedures, taking place in February 2014, May 2014, and July 2014, and subsequent care, to include any undue delay between the surgeries; (4) The Veteran’s hypertension and any impact this may have had on his claimed disabilities; (5) The July 2019 VA opinion, specifically, the contentions that: (a) the Veteran’s decreased vision in the left eye is presumed to be caused primarily by optic atrophy of the left optic nerve, which is more likely than not the result of a CRVO; (b) retinal vein occlusions can be a risk of cataract surgery; and (c) “[t]he Veteran developed rare and unforeseen complications related to eye surgery”; and (d) systemic hypertension is a risk factor for CRVO. The Board notes that one of the November 2020 VA opinions states that “rvo is not a risk factor of cataract surgery from medical literature review.” (Emphasis added). However, the November 2020 VA opinion does not address the July 2019 VA opinion, nor does it identify the medical literature reviewed. (6) The date of onset of the Veteran’s optic atrophy in the left eye. A June 2018 eye conditions DBQ states that the Veteran has had optic atrophy in the left eye “for several years (~2013/2014)...” The Board notes that the Veteran’s initial surgery was in February 2014. See Private opinion, August 2018. Therefore, clarification is needed regarding whether the optic atrophy and vision loss is a qualifying additional disability; (7) The ASRS’s CRVO factsheet. See Brief, January 2021. For all examinations, all necessary development should be taken. The VA examiner should be given access to the claim file, including a copy of this remand. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided.   3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.